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THE  UNITED  STATES  AND 
THE  EXPANSION  OF  THE 
LAW     BETWEEN    NATIONS 


THOMAS  WILLING  BALCH 

Member  of  the  Philadelphia  Bar 
The  American  Philosophical  Society,  etc. 


REPRINTED  FROM  UNIVERSITY  OF  PENNSYL  VANIA 
LAW  REVIEW,  VOL.  64,  DECEMBER,  i9i5 


Copvright  by  University  of  Pennsylvania 
1915 


THE  UNITED  STATES  AND 
THE  EXPANSION  OF  THE 
LAW     BETWEEN    NATIONS 


THOMAS  WILLING  BALCH 

Member  of  the  Philadelphia  Bar 
The  American  Philosophical  Society,  elc. 


REPRINTED  FROM  UNIVERSITY  OF  PENNSYLVANIA 
LAW    REVIEW,  VOL.  64,  DECEMBER,  1915 


Copyright  by  University  of  Pennsylvania 
1915 


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THE  UNITED  STATES  AND  THE  EXPANSION  OF  THE 
LAW  BETWEEN  NATIONS.1 

Since  the  Great  War  began,  in  which,  counting  the  Grand 
Duchy  of  Luxembourg  and  the  Republic  of  San  Marino,  fifteen 
states  are  engaged  at  the  time  this  article  is  written,  and  which 
embraces  in  its  area  much  more  than  half  the  land  of  the  earth, 
the  rules  and  customs  of  the  Law  of  Nations  have  been  buffeted 
about  very  much  both  upon  the  land  and  the  sea.  In  this  state 
of  tumult  upon  both  land  and  sea,  the  United  States  of  Amer- 
ica, as  the  chief  of  the  neutral  nations,  have  again,  as  on  several 
previous  occasions  in  the  past,  striven  not  only  to  perform  with 
impartiality  their  duties  as  a  neutral  state,  but  also  to  uphold 
their  rights  according  to  the  Law  of  Neutrality.  For  it  must 
not  be  lost  sight  of,  as  many  people  do,  that  under  the  Law  of 
Neutrality  neutrals  have  rights  which  they  can  maintain,  as  well 
as  duties  which  they  must  perform.  The  stand  taken  by  Amer- 
ica in  behalf  of  neutral  rights  during  the  present  war,  under 
the  leadership  of  President  Wilson  and  Secretary  Lansing,  will 
undoubtedly  affect  in  some  measure,  impossible  now  of  predic- 
tion, the  future  development  of  public  international  law.  It 
would  seem  appropriate  then,  to  point  out  briefly  the  influence 
which  the  United  States,  since  they  declared  their  independence 
one  hundred  and  thirty-nine  years  ago,  have  exerted  in  shaping 
and  moulding,  in  some  important  particulars,  the  development 
of  the  Law  between  Nations. 

In  colonial  days  a  few  copies  of  Grotius  in  Latin  and  like- 
wise some  copies  of  Puffendorf,  most  of  them  probably  in  Latin 
too,  found  their  way  to  the  British  North  American  colonies. 
Thus  the  Library  Company  of  Philadelphia,  founded  in  1731 
by  Franklin,  ordered  in  March,  1732,  an  English  translation  of 

ilt  is  to  the  Chancellor  d'Aguesseau  that  is  due  the  name,  Droit  entre 
les  gens. 


326983 


2  U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

Puffendorf's  work,  "Law  of  Nature,  etc."2  That  library  also 
some  years  later  obtained  an  English  translation  of  the  book 
of  the  Swiss  publicist,  J.  J..Burlemarqui,  The  Principles'  of  Nat- 
ural Law,  published  at  London  in  1758.3 

When  the  struggle  between  the  colonies  and  the  mother 
land  had  become  an  actuality,  the  need  for  "the  latest  word"  as 
to  what  was  the  Law  between  Nations,  undoubtedly  was  felt 
by  the  men  who  directed  the  policy  of  the  united  colonies.  And 
so  to  Charles  Guillaume  Frederic  Dumas,  belongs  in  large  meas- 
ure the  honor,  apparently,  of  sending  over  from  Europe,  where 
modern  international  law  was  born  in  the  early  part  of  the  sev- 
enteenth century,  across  the  Atlantic  Ocean  to  the  newly  form- 
ing thirteen  American  nations,  the  law  binding  between  nations. 
For  Dumas  sent  from  The  Hague  to  Franklin  at  Philadelphia, 
two  copies  4  of  the  new  edition  of  the  celebrated  treatise  of  the 
Swiss,  Emer  de  Vattel,  of  Neuchatel,  Le  Droit  des  Gens  ou 
Principes  de  la  Loi  Naturelle.5  This  new  edition  was  published 
at  The  Hague  in  1775  and  edited  by  Dumas.  Vattel's  work 
was  known  at  that  time  not  only  to  every  one  in  Europe  who 
professed  any  knowledge  of  the  Law  of  Nations,  but  also  was 
looked  upon  in  the  foreign  offices  of  the  European  powers  as  the 
leading  treatise  upon  the  subject.  And  even  today  Vattel's 
treatise  is  continually  cited  by  publicists  in  their  writings,  and 
by  lawyers  before  the  courts  in  disputes  turning  upon  the  proper 
application  of  the  Law  of  Nations. 

One  of  the  two  copies  of  Vattel  which  Dumas  sent  to 
Franklin,    the    sage    of    Philadelphia    presented    in    Dumas's 

2 Albert  J.  Edmunds:  The  First  Books  Imported  by  America's  First 
Great  Library,  1732,  Pennsylvania  Magazine  of  History  and  Biography,  Phil- 
adelphia, 1906,  p.  301. 

"Concerning  the  colonization  of  the  thirteen  colonies  and  the  influence 
of  European  publicists  on  American  thought,  see  Thomas  Balch :  Les  Francais 
en  Amerique  Pendant  la  Guerre  de  l'lndependance  des  Etats-Unis,  1777-1783, 
Paris,  1872;  Sydney  George  Fisher:  The  Struggle  for  American  Independ- 
ence, Philadelphia,  1908;  and  Paul  Fredericq  of  Ghent,  an  open  letter  in  the 
Journal  de  Geneve,  July  10,  1909. 

4 Albert  Henry  Smyth:  Benjamin  Franklin,  New  York,  1906,  Vol.  VI,  p. 
432. 

5  Vattel's  work  was  first  published  in  1758. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS  3 

name  to  the  Library  Company  of  Philadelphia  which  Franklin 
had  been  instrumental  in  establishing  in  1731.  Among  the 
records  of  the  directors  of  the  library,  there  is  this  interesting 
minute: — "Oct.  10,  1775.  Monsieur  Dumas  having  presented 
the  Library  with  a  very  late  edition  of  Vattel's  Law  of  Nature 
and  Nations  (in  French),  the  Board  direct  the  secretary  to  re- 
turn that  Gentleman  their  thanks." 

Franklin  tells  us  that  this  copy  was  much  used  by  the  mem- 
bers of  the  First  Continental  Congress.  This  same  copy  un- 
doubtedly was  used  by  some  of  the  members  of  the  Second 
Continental  Congress,  which  sat  at  Philadelphia;  by  the  leading 
men  who  subsequently  directed  the  policy  of  the  united  colonies 
until  the  end  of  the  war;  and  later  by  the  men  who  sat  in  the 
Constitutional  Convention  of  1787-89  and  framed  the  Constitu- 
tion of  the  United  States.  For  in  those  days  the  library  was 
housed  in  Carpenter's  Hall  where  the  First  Continental  Con- 
gress deliberated  and  within  a  stone's  throw  almost  of  where  the 
Second  Continental  Congress  met  in  the  Colonial  State  House 
of  Pennsylvania,  and  likewise  near  where  the  men  who  framed 
the  Constitution  held  their  discussions  and  where  the  Supreme 
Court  of  the  United  States  first  held  court.6  That  copy  of 
Vattel  surely  was  well  known  to  the  early  fathers  of  the  Re- 
public, some  of  whom  read  French  with  ease.  And  as  it  is  ex- 
pressly stated  in  the  Constitution  that  the  Law  of  Nations 
forms  part  of  the  law  of  the  land,  thereby  making  international 
law  part  of  the  law  which  American  courts  must  take  cogniz- 
ance of  and  interpret  when  they  give  decisions,  it  is  easily  seen 
that  Vattel  had  a  very  appreciable  influence  in  shaping  the  atti- 
tude of  the  United  States  of  America  towards  the  Law  of  Na- 
tions from  their  very  beginning  as  a  confederation  of  thirteen 
newly  constituted  members  of  the  family  of  nations  until  they 
agreed  by  the  adoption  of  the  present  Constitution  to  merge 
themselves  into  the  single  and  much  greater  single  member  of 
the  family  of  nations,  the  present  United  States  of  America. 

"  George  Maurice  Abbott :  A  Short  History  of  the  Library  Company  of 
Philadelphia,  Philadelphia,  1913,  p.  IX. 


4  U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

Another  copy  of  Vattel's  work  which  Dumas  sent  to  Frank- 
lin is  in  the  library  of  Harvard  University.  Franklin  sent  it  in 
the  summer  of  1776  to  James  Bowdoin,  afterwards  Governor  of 
Massachusetts  and  a  member  of  the  Constitutional  Convention 
of  1787-89.  Bowdoin  presented  it  to  Harvard  College  in 
Franklin's  name.  But  it  should  have  been  recorded  as  the  gift 
of  Dumas,  for  it  was  at  Dumas's  wish  that  Franklin  sent  it  to 
Harvard  College.  In  this  Harvard  copy  there  is  written  in  a 
French  hand,  apparently  before  it  was  pesented  to  Harvard  Uni- 
versity, the  following  commentary  which  is  of  remarkable  in- 
terest for  the  then  young  North  American  Confederation.  Prob- 
ably it  was  written  by  Dumas  with  his  own  hand.  But  whether 
it  was  original  with  him  or  was  taken  from  the  writings  of  one 
of  the  sages  who  have  in  different  climes  and  various  epochs 
commentated  upon  the  manner  and  form  of  government  of 
mankind,  it  is  not  as  yet  possible  to  determine. 

This  French  commentary  begins  with  the  caption,  "A  note 
of  the  Editor"  (sic),  apparently  in  the  same  handwriting  as  the 
note  itself,  which  is  as  follows: 

"77  est  des  peuples  genereux  et  magananimes,  que  leurs  vertu 
rendra  avec  le  temps  des  Etats  absolument  independants  &  autono- 
mes.  'Mes  chers  Amis  (leur  dira  alors  quelque  Sage)  Vous  ne 
sauries  mieux  faire  que  d'adopter  chez  vous  la  Constitution  An- 
gloise,  moyennant  un  petit  changement  qui,  selon  moi,  pourra  rendre 
plus  parfaite  cette  forme  de  Gouvernement  inixte,  si  heureusement 
temperee.  Ce  changement  est  de  n 'avoir  ni  royaute,  ni  noblesse,  ni 
Senat  hereditaires.  L'on  pent  tout  aussi  peu  heriter  de  I'art  de 
gouverner  les  hommes,  que  de  celui  de  les  guerir,  ou  de  leur  ap- 
prendre  a  penser,  a  chanter,  a  danser.  Gardez  vous  cependant  de 
rendre  votre  Gouvernement  electif;  ce  seroit  encore  pire:  ce  ne 
seroient  presque  jamais  les  meilleurs  ni  les  plus  sages,  mais  les 
plus  forts  &  les  plus  mechants  qui  vous  conduiroient. — Qui  nous 
designer  a  done  les  Peres  de  la  Patrief — Eh!  mes  Amis,  e'est  la  Na- 
ture, qui  de  tout  temps  les  a  montres  du  doigt  aux  premieres  So- 
cietes;  &  les  Societes  suivantes  ont  toujours  ete  aveugles,  &  sourdes 
a  la  voix  de  la  nature.  Les  plus  ages  d'entre  vos  Peres  de  families* 
fonciers,  voila  les  seuls  Rois,  s'il  en  faut,  les  seuls  Senateurs,  les  seuls 
Seigneurs  (Seniores)  dignes  de  Vous.  Vous  les  tirerez  de  la  char- 
rue;  Us  y  laisseront  leurs  fils;  &  I' age  avance  seul  conciliera  a  ces 
derniers  le  respect  &  la  veneration  de  vos  petits-fils  &  de  vos  arriere- 
petits-fils,  avec  le  droit  s'ils  se  trouvent  les  aines  de  toute  la  nation, 
de  la  conduire  a  leur  tour' " 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS  5 

A  foot-note  to  the  original  manuscript  text  is  as  follows:  "*J'ap- 
pelle  fonciers  les  prossesseurs  des  terres." 

The  above  sage  counsel  as  to  the  best  manner  of  forming 
the  new  government  that  was  necessary  to  hold  the  colonies  to- 
gether, when  read  in  the  light  of  the  history  of  the  subsequent 
one  hundred  and  thirty-nine  years  which  have  elapsed  since  the 
volume  was  presented  to  Harvard  University,  is  certainly  a 
prophetic  comment  on  the  development  of  our  political  institu- 
tions. Thus  in  it,  Lincoln,  Grant  and  Cleveland  loom  up.  And 
also  a  suggestion  of  the  decadence  of  the  personnel  of  parliamen- 
tary government  the  world  over  as  a  result  of  manhood  suf- 
frage is  made  in  it.  Whether  Dumas  wrote  the  passage  or 
quoted  it  from  some  other  publicist,  the  author  of  it,  whoever  he 
was,  was  evidently  a  scholar  well  versed  in  the  past  experiences 
of  the  human  race  in  its  efforts  to  solve  the  complex  problem  of 
the  art  of  government.  Doubtless  that  commentary  was  read 
not  only  by  Franklin  and  Bowdoin,  but  also  by  some  of  the 
other  statesmen  who  helped  to  mould  the  institutions  of  the 
United  States. 

As  the  Law  of  Nations  was  thus  literally  sent  across  the 
Atlantic  Ocean  to  the  new  budding  thirteen  nations  by  a  Hol- 
lander residing  at  The  Hague,  in  the  treatise  of  a  famous  Swiss 
publicist,  a  treatise  which  was  recognized  at  that  time  all  over 
Europe  as  the  leading  authorative  work  upon  the  Law  of  Na- 
tions, as  the  Swiss  Confederation  up  to  that  time  had  done  more 
by  its  foreign  policy  to  develop  the  actual  practice  of  neutrality 
than  any  other  power,  and  as  Vattel  had  stated  the  conception 
of  neutrality,  probably  more  clearly  than  any  publicist  up  to  the 
time  that  he  wrote,  it  was  eminently  fitting  and  logical  that  the 
young  nation  which  resulted  from  the  blending  of  the  thirteen 
colonies  upon  the  adoption  and  ratification  of  the  Constitution 
of  1787-89,  separated  from  Europe  and  its  quarrels  by  the 
broad  Atlantic,  should  do  much  to  develop  and  make  more  pre- 
cise the  Law  of  Neutrality.  Indeed  it  is  not  risking  much  to  say 
that  the  policy  of  neutrality  practiced  by  the  United  States  and 
demanded  by  them  of  other  nations  has  been  the  most  potent 
single  factor  to  shape  the  Law  of  Neutrality  as  we  have  it  today. 


6  U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

During  the  middle  ages  it  was  considered  perfectly  proper 
for  one  feudal  potentate  to  allow  another  feudal  prince  to  march 
his  troops  across  the  territory  of  the  former  lord  in  order  to 
attack  a  third  prince  and  his  possessions,  without  the  sovereign 
whose  lands  were  used  as  a  highway  for  the  purposes  of  the 
attack  being  considered  involved  in  the  struggle  in  any  way. 
The  belligerents  were  merely  making  use  of  the  public  high- 
ways. As  the  feudal  holdings  were  slowly  consolidated  into  the 
European  powers,  more  or  less  roughly  in  several  instances  upon 
the  basis  of  nationality,  questions  gradually  grew  out  of  the 
political  policy  of  the  newly  forming  states,  while  at  the  same 
time  the  questions  that  related  to  the  conduct  of  individual  lords 
or  nobles  became  of  less  and  less  importance.  As  the  former 
and  newer  class  of  questions  gained  in  prominence  with  the 
gradual  change  from  the  feudal  system  to  the  newer  idea  of 
centralized  monarchies  as  the  basis  of  the  political  divisions  of 
Europe,  the  questions  relating  to  the  conduct  of  individuals  be- 
came more  and  more  insignificant  and  dropped  gradually  into 
the  background.  But  the  idea  of  one  potentate  preserving  what 
is  meant  today  by  neutrality  when  others  were  engaged  in  war, 
was  practically  not  understood  until  Vattel's  time;  and  even  he 
did  not  state  it  with  all  the  fullness  that  the  word  neutrality 
means  today  as  a  term  of  international  law. 

Grotius  in  his  immortal  work,  De  Jure  Belli  ac  Pacis,  pub- 
lished in  1625,  said,  according  to  Westlake's  rendering,  that 
"the  duty  of  those  who  keep  aloof  from  a  war  is  to  do  nothing  by 
which  the  one  whose  cause  is  bad  may  be  strengthened,  or  the  move- 
ments of  him  who  is  engaged  in  a  just  war  may  be  impeded,  but  in 
a  doubtful  case  to  treat  the  two  parties  equally  in  allowing  passage, 
in  furnishing  supplies  to  their  armies,  and  in  abstaining  from  the 
relief  of  besieged  forces."  7 

Thus  in  the  absence  of  a  benevolent  neutrality  which  the  father 
of  the  Law  of  Nations  urged  at  the  end  of  the  first  quarter  of 
the  seventeenth  century,  he  taught  equality  of  treatment  for 
both  belligerents.     And  Bynkershoek  in  his  Quaestiones  Juris 

T  Liber  3,  c.  17,  §  3. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS  7 

Publici,  published  in  1737,  upheld  Grotius  in  maintaining  equal- 
ity of  treatment  of  the  belligerents  as  the  test  of  judging  neutral 
duties.8  Vattel,  however,  in  the  latter  half  of  the  eighteenth 
century,  maintained  that  the  real  test  of  neutrality  was  for  a 
neutral  state  to  abstain  from  taking  part  in  the  war,  except  in 
so  far  as  it  was  bound  by  a  former  treaty  to  aid  one  of  the  bel- 
ligerents.9 

Thus  the  publicists  progressed  slowly  on  the  road  to  the 
present  day  well  developed  idea  of  neutrality.  A  decided  im- 
pulse toward  the  acceptance  of  some  of  the  rules  that  now 
govern  the  relations  of  neutrals  and  belligerents  on  the  sea  was 
begun  under  the  leadership  of  the  great  Catharine  and  her 
advisors,  by  an  association  of  a  number  of  the  European  na- 
tions in  1780,  a  league  since  known  to  history  as  the  First 
Armed  Neutrality. 

The  most  important  impulse,  however,  to  the  expansion  of 
the  Law  of  Neutrality  was  to  come  from  the  young  Republic  of 
the  west,  in  the  last  decade  of  the  eighteenth  and  in  the  first 
quarter  of  the  nineteenth  century. 

The  policy  of  neutrality  set  up  and  enforced  by  the  United 
States  with  Washington  as  President  and  Jefferson  as  Secre- 
tary of  State,  during  the  war  waged  between  France  on  the 
one  side  and  Great  Britain  and  several  other  states  on  the  other 
side,  shortly  after  the  founding  of  the  first  republic  in 
France,  defined  much  more  clearly  than  had  been  the  case  in  the 
past,  what  might  and  might  not  be  done  on  neutral  territory  in 
behalf  of  belligerents. 

The  French  Republic  declared  war  against  Great  Britain, 
Holland  and  Spain,  February  1st,  1793.  With  the  aim  of 
guarding  the  American  Republic  against  needless  embroilment 
in  the  struggle,  President  Washington  on  April  22nd,  issued  his 
now  justly  famous  proclamation  declaring  the  neutrality  of  the 
United  States  of  America  and  warning  American  citizens  not 

"Liber  1,  c.  9.  See  also  Du  Ponceau's  translation  of  the  first  book  of 
this  work,  published  at  Philadelphia  in  1810  under  the  title,  "A  Treatise  of 
the  Law  of  War,"  Chapter  9. 

•  Liber  3,  §  104. 


8  U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

to  give  aid  to  either  side  in  contravention  of  that  proclamation 
and  the  Law  of  Nations.10  And  that  proclamation  was  illumi- 
nated by  Jefferson  in  various  state  papers  which  he  addressed 
either  to  the  ministers  in  America  of  the  belligerent  govern- 
ments, or  else  sent  through  the  intermediary  of  the  American 
representatives  abroad  to  the  belligerent  governments. 

In  corresponding  with  the  French  minister  to  America, 
Monsieur  Genet,  Jefferson  had  occasion  to  expound  some  points 
of  the  Law  of  Neutrality  which  arose  in  the  relations  between 
the  two  republics.  For,  upon  landing  April  8th,  1793,  at 
Charleston,  South  Carolina,  two  weeks  before  Washington  is- 
sued his  neutrality  proclamation,  the  new  envoy  sent  by  the 
French  Government  to  the  American  Government  at  Philadel- 
phia, Monsieur  Genet,  acting  on  the  theory  of  neutrality  that 
had  prevailed  in  the  past  when  it  was  perfectly  proper  for  a 
belligerent  to  march  troops  across  the  territory  of  a  neutral 
state,  to  make  war  upon  another  belligerent,  at  once  began  to 
arm  and  commission  several  vessels  and  then  send  them  out  to 
sea  to  prey  upon  the  maritime  commerce  of  Great  Britain,  a 
state  with  whom  America  was  at  peace.  Minister  Genet  also 
instructed  the  French  consuls  in  America  to  act  as  courts  of 
admiralty  to  pass  upon  the  legality  of  prizes  brought  by  French 
cruisers  into  American  ports.  Washington  called  his  Cabinet 
together,  and  it  decided  that  the  commissions  granted  to  priv- 
ateers by  Genet,  as  also  the  condemnation  of  prizes  by  the  con- 
suls of  France,  were  void.  At  another  meeting  of  the  Cabinet 
it  ordered  that  all  privateers  commissioned  by  Genet  must  leave 
American  ports,  and  took  effective  measures  whereby  other  ves- 
sels that  were  being  fitted  out  as  French  privateers  were  pre- 
vented from  going  out  to  sea. 

In  answer  to  M.  Genet's  argument  that  it  was  a  usual  duty 
of  the  consuls  of  France  to  grant  commissions  and  letters  of 
marque  to  privateers,  Secretary  Jefferson  wrote  on  June  5th, 
1793,  to  the  envoy  of  France: 


"American  State  Papers,  Foreign  Relations,  Washington,   1833,  Vol.   I, 
p.  140. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS  9 

"It  is  the  right  of  every  nation  to  prohibit  acts  of  sovereignty 
from  being  exercised  by  any  other  within  its  limits,  and  the  duty  of 
a  neutral  nation  to  prohibit  such  as  would  injure  one  of  the  warring 
powers ;  that  the  granting  military  commissions,  within  the  United 
States,  by  any  other  authority  than  their  own,  is  an  infringement  on 
their  sovereignty,  and  particularly  so  when  granted  to  their  own 
citizens,  to  lead  them  to  commit  acts  contrary  to  the  duties  they  owe 
their  own  country;  that  the  departure  of  vessels,  thus  illegally 
equipped,  from  the  ports  of  the  United  States,  will  be  but  an 
acknowledgment  of  respect,  analogous  to  the  breach  of  it,  while  it 
is  necessary  on  their  part,  as  an  evidence  of  their  faithful  neutral- 
ity." 

Later,  on  August  16th,  1793,  Jefferson  wrote  to  the  Amer- 
ican Minister  at  Paris,  Gouverneur  Morris,  further  in  support 
of  the  right  and  duty  of  the  United  States  to  maintain  its  neu- 
trality: 

"The  right  of  raising  troops,  being  one  of  the  rights  of  sover- 
eignty, and  consequently  appertaining  exclusively  to  the  nation  it- 
self, no  foreign  power  or  person  can  levy  men  within  its  territory, 
without  its  consent.  .  .  .  That  if  the  United  States  have  a  right 
to  refuse  the  permission  to  arm  vessels  and  raise  men  within  their 
ports  and  territories,  they  are  bound  by  the  laws  of  neutrality  to 
exercise  that  right,  and  to  prohibit  such  armaments  and  enlistment." 

It  was  soon  found,  however,  by  practical  experience  that 
the  United  States  of  America  could  not,  under  the  common  law 
as  it  then  existed  in  America,  effectively  prevent  their  citizens 
from  taking  an  active  part  in  the  war  and  thereby  endanger- 
ing the  neutrality  of  the  country.  Gideon  Henfield,  an  Ameri- 
can citizen,  who  had  taken  service  on  a  French  privateer,  came 
sailing  up  the  Delaware  in  1793  to  Philadelphia,  in  charge  as 
prize  master  of  a  British  vessel  which  had  been  captured  by  the 
privateer.  For  thus  disregarding  the  neutrality  proclamation 
of  the  President,  he  was  indicted  at  common  law,  in  the  fed- 
eral court.  Although  Justice  Wilson  in  his  charge  to  the  jury, 
urged  upon  them  that  the  defendant  should  do  nothing  that 
might  harm  his  country,  that  under  the  Constitution  the  treaties 
of  the  United  States  with  foreign  powers  were  part  of  the  law 
of  the  land,  and  that  the  United  States  had  entered  into  a  treaty 


10         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

of  friendship  with  Great  Britain  which  was  then  in  force,  the 
jury,  nevertheless,  acquitted  Henfield.11 

This  verdict  made  it  clear  that  the  municipal  law  then  in 
force  in  the  country  might  not  be  sufficient  to  prevent  Ameri- 
can citizens  from  engaging  in  their  own  country  in  the  service 
of  a  belligerent.  President  Washington  and  Secretary  Jeffer- 
son persuaded  Congress  to  pass  the  Neutrality  Act  of  1794. 
That  act  temporarily  forbade  citizens  of  the  United  States  from 
accepting  letters  of  marque  from  a  belligerent  state,  or  to  enlist 
in  America  in  the  military  forces  of  a  foreign  nation,  and  pro- 
hibited vessels  which  were  intended  to  cruise  as  privateers  for 
a  foreign  belligerent  from  fitting  out  and  arming  in  American 
ports.  Several  other  acts  relating  to  the  same  object  of  pre- 
serving the  neutrality  of  the  country  were  enacted  from  time  to 
time,  until  finally  on  April  20th,  181 8,  under  the  influence  of 
the  wars  for  independence  of  the  South  American  countries 
then  in  progress,  Congress  dealt  with  the  subject  on  a  compre- 
hensive scale  in  the  Foreign  Enlistment  Act  which  it  enacted 
and  which  is  still  in  force.  That  enactment  led  in  the  following 
year  to  the  passage  by  the  British  Parliament  of  the  British 
Foreign  Enlistment  Act.  And  when  as  a  result  of  the  events 
of  the  American  Civil  War,  it  became  clear  that  the  Act  of  181 9 
was  not  sufficiently  stringent  to  enforce  British  neutrality,  it  was 
superseded  by  another  act  in  1870  which  is  still  in  force.  As 
Westlake  justly  remarks,  "no  state  law  of  the  kind  is  a  declara- 
tion to  the  world  of  what  the  state  in  question  deems  to  be  its 
international  duty  as  a  neutral.  It  is  a  declaration  to  its  own 
subjects  of  the  powers  which  it  deems  necessary  to  take  over 
them,  whether  in  pursuance  of  its  own  policy  or  in  order  to 
ensure  the  performance  of  its  neutral  duty."  Still  the  enact- 
ment of  such  municipal  statutory  law,  is  an  indication  of  what 
the  conduct  of  neutral  nations  towards  belligerents  should  be. 
The  precautionary  measures  that  many  governments  have  since 


11  Henry  Wheaton :    Elements  of  International  Law,  edited,  with  notes, 
by  Richard  Henry  Dana,  Jr.,  Boston,  1866,  p.  543,  note. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         11 

taken  by  the  enactment  of  municipal  statutes  to  enable  them  to 
safeguard  and  maintain  their  neutrality  in  case  of  need,  have 
resulted  from  the  early  lead  that  the  United  States  of  America 
took  in  such  matters. 

The  policy  of  neutrality  as  stated  by  Jefferson  in  his  com- 
munications above  quoted  to  Genet  and  Morris,  and  enforced 
by  the  United  States  in  the  war  then  raging  between  France 
and  Great  Britain,  made  much  more  clear  than  ever  before  that 
time  what  can  and  cannot  properly  be  done  in  neutral  territory 
in  intercourse  with  belligerents.  That  policy  has  had  a  great  in- 
fluence on  the  expansion  of  the  Law  of  Neutrality,  and  even 
helped  to  gain  the  American  legal  victory  before  the  Geneva 
Tribunal  in  1872. 

If,  however,  under  President  Washington  and  Secretary 
Jefferson,  the  American  Republic  took  advanced  ground  to  per- 
form its  neutral  duties,  it  was  not  less  backward,  if  perhaps  not 
so  successful,  in  upholding  the  neutral  rights  of  its  citizens  to 
trade  with  countries  with  which,  though  they  happened  to  be 
belligerents,  the  United  States  were  at  peace  and  on  terms  of 
friendship. 

One  of  the  most  important  of  the  state  papers  of  Jefferson, 
upholding  the  right  of  American  citizens  to  trade  with  belliger- 
ents, was  his  letter  of  May  15th,  1793,  to  the  British  envoy  at 
Philadelphia,  Mr.  Hammond,  in  which  the  American  statesman 
defined  the  rights  of  American  citizens  to  sell  arms  to  any  or  all 
belligerents.    Jefferson  said: 

"Our  citizens  have  been  always  free  to  make,  vend  and  export 
arms.  It  is  the  constant  occupation  and  livelihood  of  some  of  them. 
To  suppress  their  callings,  the  only  means  perhaps  of  their  subsist- 
ence, because  a  war  exists  in  foreign  and  distant  countries,  in  which 
we  have  no  concern,  would  scarcely  be  expected.  It  would  be  hard 
in  principle  and  impossible  in  practice.  The  Law  of  Nations,  there- 
fore, respecting  the  rights  of  those  at  peace,  does  not  require  from 
them  such  an  internal  disarrangement  in  their  occupations.  It  is 
satisfied  with  the  external  penalty  pronounced  in  the  President's 
proclamation,  that  of  confiscation  of  such  portion  of  these  arms  as 
shall  fall  into  the  hands  of  any  belligerent  powers  on  their  way  to 
the  ports  of  their  enemies.  To  this  penalty  our  citizens  are  warned 
that  they  will  be  abandoned,  and,  that  even  private  contraventions 


12         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

may  work  no  inequality  between  the  parties  at  war,  the  benefit  of 
them  will  be  left  equally  free  and  open  to  all." 

That  definition  of  the  right  of  private  citizens  of  a  neutral 
power  to  sell  arms  to  any  belligerent  government,  subject  to 
the  risk  of  capture  of  the  arms  during  their  transit  on  the  high 
seas,  by  the  cruisers  of  one  of  the  belligerents,  helped  to  form 
international  law  on  that  point:  and  that  statement  is  an  abso- 
lutely sound  exposition  of  the  law  of  nations  on  that  point  today. 

Other  points  of  difference  between  the  United  States  and 
Great  Britain,  requiring  a  prooper  interpretation  of  the  rights  of 
neutrals,  soon  arose. 

On  June  8th,  1793,  the  British  Government,  by  an  Order 
in  Council,  gave  instructions  to  the  commanders  of  British  ships 
of  war  and  privateers  having  letters  of  marque  against  France, 
to  seize  all  neutral  vessels  laden  with  "corn,  flour,  or  meal, 
bound  for  any  port  in  France,  or  any  port  occupied  by  the  armies 
of  France,"  and  all  neutral  vessels,  except  those  of  Denmark  and 
Sweden,  attempting  to  enter  any  blockaded  port.12  Since  the 
United  States,  Denmark,  and  Sweden  were  the  leading  neutral 
powers,  it  was  evident  that  this  last  measure  was  aimed  against 
American  vessels.  Though  dated  June  8th,  this  Order  in  Coun- 
cil was  not  issued  until  the  28th  day  of  the  month.13  The 
British  Minister  at  Philadelphia,  Mr.  Hammond,  in  communi- 
cating this  Order  in  Council  to  Secretary  Jefferson,  said: 

"By  the  law  of  nations,  as  laid  down  by  the  most  modern 
writers,  it  is  expressly  stated,  that  all  provisions  are  to  be  considered 
as  contraband,  and  as  such,  liable  to  confiscation,  in  the  case  where 
the  depriving  an  enemy  of  these  supplies,  is  one  of  the  means  in- 
tended to  be  employed  for  reducing  him  to  reasonable  terms  of  peace. 
The  actual  situation  of  France  is  notoriously  such,  as  to  lead  to  the 
employing  this  mode  of  distressing  her  by  the  joint  operations  of  the 
different  powers  engaged  in  the  war.  .  .  .  The  present  measure 
pursued  by  His  Majesty's  Government,  so  far  from  going  to  the  ex- 
tent which  the  Law  of  Nations,  and  the  circumstances  of  the  case 
would  have  warranted,  only  has  prevented  the  French  from  being 

"American  State  Papers,  Foreign  Relations,  Washington,   1833,  Vol.  1, 
p.  240. 

"Ibid.,  p.  241. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         13 

supplied  with  corn  omitting  all  mention  of  other  provisions ;  and 
even  with  respect  to  corn,  the  regulation  adopted  is  one  which,  in- 
stead of  confiscating  the  cargoes,  secures  to  the  proprietors,  sup- 
posing them  neutral,  a  full  indemnification  for  any  loss  they  may 
possibly  sustain." 

The  American  position  on  this  question  was  stated  at  length 
by  Secretary  Jefferson  in  a  communication  to  the  American 
Minister  at  the  Court  of  Saint  James,  Mr.  Pickney.14  After 
speaking  of  having  received  unofficial  information  of  the  Order 
in  Council  of  June  8th,  and  stating  in  substance  the  first  article  of 
that  Order,  he  went  on  to  say: 

"This  article  is  so  manifestly  contrary  to  the  Law  of  Nations, 
that  nothing  more  would  seem  necessary,  than  to  observe  that  it  is 
so.  Reason  and  usage  have  established,  that  when  two  nations  go 
to  war,  those  who  choose  to  live  in  peace  retain  their  natural  right 
to  pursue  their  agriculture,  manufactures,  and  other  ordinary  voca- 
tions; to  carry  the  produce  of  their  industry,  for  exchange,  to  all 
nations,  belligerent  or  neutral,  as  usual;  to  go  and  come  freely, 
without  injury  or  molestation;  and,  in  short,  that  the  war  among 
others  shall  be,  for  them,  as  if  it  did  not  exist.  One  restriction  on 
those  mutual  rights  has  been  submitted  to  by  nations  at  peace,  that 
is  to  say,  that  of  not  furnishing  to  either  party  implements  merely 
of  war,  for  the  annoyance  of  the  other,  nor  any  thing  whatever  to 
a  place  blockaded  by  its  enemy.  What  these  implements  of  war  are, 
has  been  so  often  agreed,  and  is  so  well  understood,  as  to  leave  little 
question  about  them  at  this  day.  There  does  not  exist,  perhaps,  a 
nation  in  our  common  hemisphere  which  has  not  made  a  particular 
enumeration  of  them,  in  some  or  all  of  their  treaties,  under  the 
name  of  contraband.  It  suffices,  for  the  present  occasion,  to  say 
that  corn,  flour,  and  meal  are  not  of  the  class  of  contraband,  and 
consequently  remain  articles  of  free  commerce.  A  culture  which, 
like  that  of  the  soil,  gives  employment  to  such  a  proportion  of  man- 
kind, could  never  be  suspended  by  the  whole  earth,  or  interrupted 
for  them,  whenever  any  two  nations  should  think  proper  to  go  to 
war." 

Jefferson  went  on  to  maintain  that  neither  of  the  belliger- 
ents had  the  right  to  interrupt  the  legitimate  trade  of  American 
citizens  with  all  the  world.  He  made  a  powerful  argument 
that  the  United  States  had  the  right  to  trade  in  her  food  stuffs 
with  whom  she  wished,  and  asserted  that  if  Great  Britain  felt 

u  Ibid.,  p.  239. 


14         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

the  need  of  reducing  an  enemy  nation  by  starvation,  she  had  no 
right  of  doing  it  at  the  loss  of  the  United  States. 

September  3,  1793,  the  British  Admiralty  issued  an  order 
"that  freight  and  reasonable  expenses"  should  be  allowed  "to 
all  masters  of  neutral  ships.  .  .  .  Provided  always, 
that  no  mala  fides"  should  appear.  The  order  went  on  to  say, 
"Demurrage  shall  be  allowed,  and  considered  as  a  reasonable 
expense,  only  in  cases  where  the  ship  shall  be  pronounced  to  have 
been  unjustly  seized  and  brought  in  for  adjudication,"  or  when 
the  captured  vessel  was  unfairly  held.15 

On  the  6th  of  November,  1793,  the  British  Government 
applied  the  rule  of  the  War  of  1756  16  to  the  trade  between 
France  and  her  colonies  by  an  Order  in  Council  that  was  pub- 
lished December  23d,  following.  It  instructed  the  commanders 
of  British  war  vessels  or  privateers  to  capture  and  seize  "all 
ships  laden  with  the  produce  of  any  colony  belonging  to  France," 
or  that  carried  provisions  or  supplies  to  any  French  colony.17 

This  order,  of  course,  was  equivalent  to  stopping  all  trade 
by  neutral  nations  with  the  colonies  of  France,  and  neutrals 
in  this  case  meant  practically  the  United  States.18  It  aroused 
much  feeling  among  the  American  people  towards  Great 
Britain.19 

Meanwhile,  Edmund  Randolph,  who  had  succeeded  Jeffer- 
son as  Secretary  of  State,  had  addressed  on  May  1st,  to  the 
British  Minister  at  Philadelphia,  Mr.  Hammond,  a  long  and 
learned  despatch  protesting  against  the  interference  of   Great 


"Ibid.,  p.  315. 

"Henry  Wheaton  (edited  by  Richard  Henry  Dana):  Elements  of  In- 
ternational Law,  Boston,  1866,  p.  666;  Theodore  Dwight  Woolsey:  Introduction 
to  the  Study  of  International  Law,  New  York,  1883,  Fifth  Edition,  p.  349. 
John  Westlake :  International  Law,  Part  II,  War,  Cambridge  University  Press, 
1907,  pp.  254-255;  James  Madison,  Examination  of  the  British  Doctrine 
Which  Subjects  to  Capture  a  Neutral  Trade  Not  Open  in  Time  of  Peace, 
1806,  see  Letters  and  other  Writings,  Philadelphia,  1865,  p.  229. 

"American  State  Papers,  Foreign  Relations,  Washington,  1833,  p.  430. 

"James  Madison:  A  Memoir  Containing  an  Examination  of  the  British 
Doctrine  Which  Subjects  to  Capture  a  Neutral  Trade  Not  Open  in  Time  of 
Peace,  in  "Letters  and  Other  Writings,"  Philadelphia,  1865,  Vol.  II,  p.  310. 

"Richard  Hildreth:  History  of  the  United  States  of  America,  New 
York,  1882,  Vol.  IV,  pp.  481,  482. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         15 

Britain  with  the  rights  of  the  United  States  to  carry  on  com- 
merce with  France  except  in  contraband  of  war;20  and  contra- 
band of  war  in  those  days  meant  an  infinitely  more  restricted  list 
of  articles  than  it  has  been  expanded  into  meaning  today. 

Many  American  vessels  were  taken  and  their  cargoes  con- 
demned. This  caused  a  hardship  on  the  commerce  of  the 
United  States.  Finally,  however,  the  situation  was  eased  off. 
in  a  measure  by  the  British  Government  by  an  Order  in  Council 
of  January  8th,  1794,  that  revoked  that  of  the  previous  6th  of 
November.21 

This  new  Order  changed,  to  quote  James  Madison,22  "the 
preceding  instructions  in  three  respects.  First:  in  substituting 
'the  French  West  India  Islands'  for  'any  colony  of  France/  of 
which  there  are  some  not  islands,  and  others  not  West  India 
Islands;  Second:  in  limiting  the  seizure,  to  produce  'coming  di- 
rectly from  any  port  of  the  said  islands';  Third:  in  the  very 
important  limitation  of  the  seizure,  to  vessels  bound  from  those 
islands  to  any  port  in  Europe." 

These  new  regulations  weighed  less  than  the  original  Order 
on  the  foreign  commerce  of  the  United  States,  especially  in  cur- 
tailing captures  to  vessels  bound  directly  from  the  French  West 
India  Islands  to  European  Ports.  The  new  Order,  therefore, 
allowed  importation  into  the  United  States  of  French  West 
India  production,  which  could  then  be  retransported  to  Eu- 
rope.23 And  in  spite  of  the  need  of  paying  customs  duties  to 
America,  a  round  about  trade  sprang  up  from  the  French  West 
Indies  to  Europe  by  way  of  the  United  States,  which  lasted  for 
more  than  ten  years. 

However  the  Americo-British  relations  continued  strained. 
In  a  message  to  the  United  States  Senate,  of  April  16th,  1794, 
President  Washington  spoke  of  the  "serious  aspect  of  our  af- 
fairs with  Great  Britain,"  and  then  said: 

"But  as  peace  ought  to  be  pursued  with  unremitted  zeal,  before 

30  American  State  Papers,  Foreign  Relations,  Washington,  1833,  p.  450. 

nIbid„  p.  431. 

MSee  supra,  note  18,  at  p.  313. 

*  See  supra,  note  18,  at  p.  313. 


16         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

the  last  resource,  which  has  so  often  been  the  scourge  of  nations, 
and  cannot  fail  to  check  the  advanced  prosperity  of  the  United 
States,  is  contemplated,  I  have  thought  proper  to  nominate,  and  do 
hereby  nominate,  John  Jay  as  envoy  extraordinary  of  the  United 
States  to  His  Britannic  Majesty."  24 

Mr.  Jay's  appointment  was  confirmed  by  the  Senate. 

Edmund  Randolph,  who  had  succeeded  Thomas  Jefferson 
as  Secretary  of  State,  in  his  instructions  to  Jay  of  May  6th, 
1794,25  referred  to  "the  vexations  and  spoliations  committed  on 
our  commerce  by  the  authority  of  instructions  from  the  British 
Government."     Randolph  further  continued: 

"You  will  perceive  that  one  of  the  principles,  upon  which  com- 
pensation is  demanded  for  the  injuries  under  the  instructions  of  the 
8th  of  June,  1793,  is,  that  provisions,  except  in  the  instance  of  a 
siege,  blockade,  or  investment,  are  not  to  be  ranked  among  contra- 
band. .  .  .  The  matter  of  these  instructions  (November  6th, 
1793)  fills  up  the  measure  of  depredations.  They  were  unknown 
publicly  in  England  until  the  26th  of  December,  1793 ;  there  is  good 
reason  to  suppose  that  they  were  communicated  to  the  ships  of  war 
before  they  were  published,  and  that  in  consequence  of  a  private 
notification  of  them,  a  considerable  number  of  new  privateers  were 
fitted  out.  The  term  'legal  adjudication,'  in  spite  of  the  explanation 
on  the  8th  of  January,  1794,  was  most  probably  intended  to  be  con- 
strued away  or  not,  according  to  events,  and  many  vessels  have  been 
condemned  under  them.  Compensation  for  all  the  injuries  sus- 
tained, and  captures  will  be  strenuously  pressed  by  you." 

Chief  Justice  Jay,  as  special  American  envoy,  and  Lord 
Grenville,  British  Foreign  Secretary,  concluded  on  November 
19th,  1794,  a  general  convention  adjusting  the  relations  between 
the  two  countries.  That  convention  upon  its  ratification  by  the 
United  States  Senate  on  June  24th,  1795,  became  a  treaty.  The 
seventh  article  of  that  treaty  provided  for  the  settlement  of  the 
claims  of  American  citizens  against  the  British  Empire  for 
unjust  seizure  of  their  vessels  and  goods  on  the  high  seas  by 
British  cruisers  and  privateers,  during  the  war  in  progress  be- 
tween Great  Britain  and  France,  by  a  reference  of  such  claims 
to  a  board  of  five  commissioners.     The  commissioners  closed 

24  American  State  Papers,  Foreign  Relations,  Washington,  1833,  p.  447. 
Henry  Flanders :  Lives  and  Times  of  the  Chief  Justices  of  the  Supreme 
Court  of  the  United  States,  Philadelphia,  1881,  Vol.  I,  pp.  403-404. 

35  American  State  Papers,  Foreign  Relations,  Washington,  1833,  p.  472. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         17 

their  examination  of  claims,  February  24th,  1804.26  Of  the 
many  cases  which  they  passed  on,  some  they  dismissed,  and  in 
others  they  awarded  damages.27  The  total  amount  which  they 
awarded  to  American  citizens  was  close  to  $11,650,000.00. 

The  policy  of  the  United  States  in  carrying  on  war  on 
land  has  also  profoundly  moulded  and  shaped  the  rules  govern- 
ing the  manner  of  conducting  war  on  land.  In  the  midst  of  the 
American  Civil  War,  upon  the  advice  of  General  Halleck, 
President  Lincoln  commissioned  Francis  Lieber  of  Columbia 
College  to  draw  up  a  code  of  rules  for  the  instruction  of  the 
armies  of  the  United  States  in  the  field  as  to  the  manner  of 
carrying  on  war.  Revised  by  American  officers,  these  rules 
were  published  by  the  American  Government,  April  14th,  1863, 
under  the  title,  Instructions  for  the  Government  of  the  Armies 
of  the  United  States  in  the  Field,  drafted  by  Francis  Lieber. 
While  recognizing  that  the  object  of  a  belligerent  engaged  in 
war  on  land  is  to  win  through  the  destruction  or  capture  of  the 
army  of  the  enemy  and  the  resources  upon  which  that  army 
relies,  yet  by  that  code  of  rules  the  federal  authorities  sought  to 
avoid  needless  destruction  of  life  and  property.  This  will  be 
seen  by  quoting  a  few  of  the  rules,  to  wit: 

"68.  Modern  wars  are  not  internecine  wars,  in  which  the  kill- 
ing of  the  enemy  is  the  object.  The  destruction  of  the  enemy  in 
modern  war  and,  indeed  modern  war  itself,  are  means  to  obtain  that 
object  of  the  belligerent  which  lies  beyond  the  war.  Unnecessary  or 
revengeful  destruction  of  life  is  not  lawful. 

"69.  Outposts,  sentinels  or  pickets  are  not  to  be  fired  upon  ex- 
cept to  drive  them  in,  or  when  a  positive  order,  special  or  general, 
has  been  issued  to  that  effect. 

"70.  The  use  of  poison  in  any  manner,  be  it  to  poison  wells  or 
food,  or  arms,  is  wholly  excluded  from  modern  warfare.  He  that 
uses  it  puts  himself  out  of  the  pale  of  the  law  and  usages  of  war. 

"71.  Whoever  intentionally  inflicts  additional  wounds  on  an 
enemy  already  wholly  disabled,  or  kills  such  an  enemy,  or  who 
orders  or  encourages  soldiers  to  do  so,  shall  suffer  death,  if  duly 
convicted,  whether  he  belongs  to  the  army  of  the  United  States,  or 
is  an  enemy  captured  after  having  committed  his  misdeed." 


* John  Bassett  Moore:    Arbitrations  to  Which  the  United   States  Has 
Been  a  Party,  Washington,  1898,  Vol.  I,  p.  341. 
"  Ibid.,  pp.  343-344- 


18         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

This  code  of  Lieber  not  only  was  used  by  the  Union  armies 
during  the  rest  of  the  Civil  War,  but  afterwards  influenced  the 
framing  of  the  code  prepared,  though  never  ratified  by  the 
powers,  at  the  Brussels  conference  of  1874.  The  war  code  of 
Lieber,  who  was  a  great  friend  of  Bluntschli  of  Heidelberg, 
had  an  immense  influence  upon  the  preparation  by  the  Heidel- 
berg scholar  of  part  of  his  proposed  code  of  the  Law  of  Na- 
tions.28 And  Lieber's  war  rules  and  regulations  formed  the 
basis  of  the  rules  of  the  law  of  war  as  determined  at  the  First 
and  the  Second  Hague  Peace  Conferences  in  1899  and  1907 
respectively. 

On  the  sea  as  well,  the  United  States  have  led  the  way  for 
the  codification  of  the  rules  of  war.  On  June  27th,  1900,  the 
United  States  published  to  the  world  a  body  of  rules  for  the 
use  of  their  navy,  the  so-called  United  States  Naval  War  Code. 
These  rules  were  drafted  by  Captain  (now  Rear- Admiral) 
Charles  Herbert  Stockton  of  the  United  States  Navy.  Though 
this  code  of  rules  was  withdrawn  by  the  American  Government 
February  4th,  1904,  because  until  their  adoption  by  the  leading 
maritime  powers  of  the  world,  they  would  have  placed  the 
United  States  Navy  at  a  disadvantage  in  case  the  American  Re- 
public became  engaged  in  war  with  a  strong  maritime  power 
which  did  not  recognize  the  rules  as  binding  upon  its  own  naval 
forces,  nevertheless  the  work  of  Admiral  Stockton  marks  the 
beginning  of  a  movement  for  the  adoption  by  the  nations  in 
the  future  of  some  kind  of  international  naval  war  code. 

While  the  United  States  of  America  did  not  originate  the 
movement  aiming  to  free  navigation  upon  many  international 
navigable  rivers,  that  is,  rivers  flowing  through  or  between  the 
territory  of  two  or  more  nations  through  their  entire  navigable 
course,  to  the  navigation  of  the  vessels  and  boats  of  all  the  ripa- 
rian nations,  still  the  United  States  by  their  policy  in  insisting 
upon  the  freedom  of  navigation  of  the  Mississippi  as  long  as  it 
flowed  through  or  along  the  territory  of  two  nations,  and  like- 
wise in  obtaining  by  treaty  in  exchange  for  freedom  of  naviga- 

w  Le  Droit  International  Codifie,  translated  by  Lardy,  Paris,  1870. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         19 

tion  of  the  Yukon,  the  Stikine  and  the  Porcupine  rivers  by  British 
vessels,  the  freedom  of  navigation  of  the  St.  Lawrence  for 
American  vessels,  the  United  States  have  helped  the  general 
movement  on  the  part  of  the  family  of  nations  to  recognize, 
that  the  vessels  of  the  upper  riparian  nations  of  international 
rivers  and  streams,  shall  not  be  cut  off  from  access  to  the  sea 
by  the  riparian  nations  lower  down  or  controlling  the  entrance 
to  the  sea. 

In  working  out  the  extent  of  the  territorial  sea,  the 
United  States  of  America  also  have  done  their  share.  In  con- 
tradistinction with  the  vast,  and  often  empty,  claims  of  various 
sea  powers  to  dominion  over  the  sea  that  were  put  forward  in 
the  middle  ages,  in  the  beginning  of  the  seventeenth  century  the 
idea  was  advanced — an  idea  which  doubtless  originated,  as  a 
Scottish  publicist,  T.  W.  Fulton,  has  suggested,  in  the  fertile 
brain  of  Grotius  and  which  another  almost  equally  celebrated 
Dutch  publicist,  Bynkershoek,  made  known  to  all  Europe  in  the 
next  century — that  along  the  sea  shore  where  land  and  sea  meet, 
the  power  of  the  sovereign  of  the  land  over  the  adjoining  sea, 
extended  as  far  as  a  cannon  shot  could  be  fired  from  the  land  out 
over  the  sea.  The  idea  of  what  was  the  equivalent  in  measured 
distance  of  a  cannon  shot  varied  in  different  times  and  places, 
until  Thomas  Jefferson,  as  American  Secretary  of  State,  stated 
in  1793  both  to  M.  Genet,  the  envoy  of  France,  and  Mr.  Ham- 
mond, the  envoy  of  Great  Britain,  that  the  American  Government 
would  consider  it,  for  the  purposes  of  regulating  its  neutrality 
during  the  war  then  in  progress  between  some  of  the  powers  of 
Europe,  to  be  the  equivalent  of  three  geographical  miles.  That 
three-mile  limit  was  adopted  as  the  extent  of  the  territorial  sea 
in  the  treaty  of  18 18  concluded  by  America  and  Great  Britain, 
and  it  has  subsequently  been  adopted  by  most,  though  not  by 
all,  of  the  members  of  the  family  of  nations. 

In  the  expansion  of  another  field  of  the  Law  of  Nations, 
to  wit,  the  development  of  the  judicial  machinery  for  substitut- 
ing, whenever  it  is  possible,  judicial  settlement  for  war  in  de- 
ciding the  differences  between  nations,  the  United  States  have 
played  a  leading  role ;  indeed  it  may  be  said  that  they  have  been 
the  leader. 


20         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

As  the  European  nations  began  to  emerge  out  of  the  grad- 
ually breaking  up  and  disappearing  feudal  system,  various  plans 
for  substituting  in  some  way  international  justice  for  interna- 
tional war  in  deciding  the  disputes  between  nations,  began  to  be 
made.  Thus  Henri  Quatre  and  the  Due  de  Sully,  fimeric  Cruce, 
William  Penn,  the  Abbe  Castel  de  Saint. Pierre,  and  Emmanuel 
Kant,  among  others,  advanced  various  schemes  to  do  away, 
more  or  less,  with  war.  With  some  slight  exceptions,  however, 
it  was  not  until  after  the  conclusion  of  the  treaty  of  1783  that 
any  continuous  movement  to  avoid  war  by  some  means  or  other 
of  judicial  settlement  began  to  be  put  in  practice.  In  the  Anglo- 
American  treaty  of  November,  1794,  known  as  Jay's  Treaty, 
provision  was  made  to  refer  three  then  existing  subjects  of 
disagreement  between  the  contracting  powers  to  mixed  commis- 
sions for  final  decision  and  settlement. 

Article  five  of  Jay's  Treaty  provided  for  deciding  what 
river  was  meant  by  the  "name  of  the  river  Saint  Croix"  in  the 
treaty  of  peace  of  1783  between  America  and  Britain;  article 
six  arranged  for  the  submission  to  arbitration  of  the  claims  of 
British  subjects  against  American  citizens  which  had  arisen  in 
the  past  owing  to  various  causes;  and  article  seven  provided 
for  the  settlement  of  the  claims  of  American  merchants  which 
had  arisen  against  the  British  Government  owing  to  the  acts  of 
British  war  vessels.  Eventually  in  the  course  of  ten  years  or 
so,  all  these  questions  were  settled  in  the  manner  provided  for 
in  Jay's  Treaty.  Then  in  concluding  the  war  of  1812,  again 
America  and  England  agreed  by  the  Treaty  of  Ghent  to  submit 
various  boundary  difficulties  to  international  joint  commissions. 
And  after  that  many  times  again  until  the  advent  of  the  Civil 
War,  the  United  States  Government  led  in  having  its  difficulties 
with  other  governments  submitted  to  some  form  of  international 
arbitration. 

Then  as  the  Civil  War  was  approaching  its  close,  it  was 
a  member  of  the  Philadelphia  Bar,  Thomas  Balch,  who  proposed 
in  November,  1864,  to  President  Lincoln  and  again  in  a  public 
letter  printed  in  the  New  York  Tribune,  May  13th,  1865,  that  the 
then    pending   American    reclamations    against    Great    Britain 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         21 

growing  out  of  the  Civil  War,  known  under  the  generic  name 
of  the  Alabama  claims,  should  be  referred  to  a  regularly  consti- 
tuted International  Judicial  Tribunal  for  judgment.  That 
proposal  eventually  ripened  into  the  Geneva  Tribunal  of  1871- 
72,  which  settled  the  Alabama  claims  by  a  judicial  decision.29 
And  the  Geneva  Tribunal  became  the  model  upon  which  were 
constituted  the  Paris  International  Tribunal  that  sat  in  1893 
upon  the  Bering  Sea  fur  seal  fisheries  case,  the  international 
court  which  sat  in  judgment  in  the  Venezuela  boundary  case, 
and  also  profoundly  influenced  the  work  of  both  the  First  and 
the  Second  Hague  Peace  Conferences  in  providing  for  a  more 
easy  and  flexible  way  of  constituting  international  courts  ap- 
pointed ad  hoc. 

As  a  great  deal  of  confusion  has  arisen  since  the  meeting  of 
the  Second  Hague  Peace  Conference  in  1907  over  the  real 
meaning  of  the  words  arbitration  and  arbitrator  as  terms  of 
the  Law  of  Nations,  it  may  not  be  amiss  to  define  the  judicial 
meaning  of  the  words,  and  differentiate  them  from  the  words 
mediation  and  mediator,  with  which  today,  owing  to  poor  schol- 
arship, the  former  two  are  often  confounded.  Without  refer- 
ring to  the  older  dictionaries  of  Philipp  and  Johnson  in  England, 
and  the  edition  of  1694  of  the  dictionary  issued  by  the  French 
Academy,  it  may  be  worth  while  to  quote  from  one  or  two  edi- 
tions of  the  dictionaries  of  Webster  and  Worcester. 

Noah  Webster,  in  his  Dictionary  published  at  New  Haven 
in  1806,  gives  these  definitions:  "Arbitrate,  v.  to  hear  and  judge 
as  an  arbitrator."  "Arbitration,  n.  reference  of  a  controversy 
to  persons  chosen  by  the  parties,  a  hearing  before  arbitrators." 
"Arbitrator,  n.  a  person  chosen  by  a  party  to  decide  a  contro- 
versy, one  who  has  the  sovereign  right  to  judge  and  control." 
Webster  in  his  day  and  since  has  been  recognized  among  schol- 
ars for  having  had  a  great  knowledge  of  the  meaning  of  words. 
And  in  the  above  quotations,  from  the  first  edition  of  his  cele- 
brated dictionary,  he  distinctly  maintains  that  to  arbitrate  is  to 

*  Concerning  the  Alabama  Claims,  see  Frank  Warren  Hackett :  Rem- 
iniscences of  the  Geneva  Tribunal  of  Arbitration,  1872,  New  York  and  Bos- 
ton, 1911. 


22         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

judge,  and  that  an  arbitrator  is  one  who  possesses  the  "sover- 
eign right  to  judge."  Webster  does  not  anywhere  in  the  above 
citations  even  remotely  suggest  that  arbitration  means  concilia- 
tion or  mediation.  In  the  revised  and  much  enlarged  edition  of 
Webster's  work,  published  at  Springfield  in  1908,  it  is  distinctly 
affirmed  again  that  to  arbitrate  means:  "1.  To  decide;  to  de- 
termine. 2.  To  act  as  arbitrator  or  judge."  Further  in  the  edi- 
tion of  1908  mediate  and  cognate  words  are  defined  as  follows: 
"Mediate,  a.  1.  Being  between  the  two  extremes;  middle;  inter- 
posed; intervening;  intermediate."  "Mediate,  v.  i.  1.  To  be  in 
the  middle,  or  between  two;  to  intervene.  2.  To  interpose  be- 
tween parties,  as  the  equal  friend  of  each,  especially  for  the 
purpose  of  effecting  a  reconciliation  or  agreement,  as,  to  mediate 
between  nations."  "Mediator,  n.  One  who  mediates;  espe- 
cially, one  who  interposes  between  parties  at  variance  for  the 
purpose  of  reconciling  them;  hence,  an  intercessor." 

Joseph  E.  Worcester,  who  also  is  held  in  high  esteem  in  the 
world  of  scholars  for  his  sound  and  extensive  knowledge  of 
the  meaning  of  English  words,  likewise  maintains,  in  his  dic- 
tionary published  at  Boston  in  1846,  that  an  arbitrator  is  a  judge, 
not  a  reconcilor.  He  says:  "Arbiter,  n.  (L)  One  appointed 
to  decide  a  point  in  dispute,  an  arbitrator,  a  judge."  "Arbiter, 
v.  a.  To  judge."  Arbitrate,  v.  a.  To  decide;  to  judge  of." 
"Arbitrate,  v.  n.  To  give  judgment.  South."  "Arbitration, 
n.  Act  of  arbitrating  (Law),  the  investigation  and  determina- 
tion of  a  cause  by  an  unofficial  person,  or  by  persons  mutually 
chosen  by  the  contending  parties;  arbitrament."  "Arbitration, 
Bond,  n.  (Law)  A  solemn  obligation  to  submit  to  an  award. 
Blackstone."  "Arbitrator,  n.  An  umpire,  a  judge  (Law).  A 
person  chosen  by  parties  at  variance  to  determine  a  matter  in 
dispute."  Thus  after  distinctly  stating  in  the  above  quotations 
that  an  arbitrator  is  a  judge,  Worcester  goes  on  to  define  media- 
tion as  "the  act  of  mediating;  interposition,  intervention, 
agency  interposed;  intercession,"  and  a  mediator  as,  "One  who 
mediates;  an  intercessor;  one  of  the  characters  of  our  Blessed 
Savior."  According  to  Worcester,  therefore,  there  is  nothing 
in  common  between  arbitration  and  mediation.    On  the  contrary 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         23 

according  to  him  they  are  words  having  different  and  distinct 
meanings,  the  former  referring  to  a  judicial  function,  the  latter 
to  a  diplomatic  one. 

So  likewise,  by  turning  to  the  masters  of  the  science  of  the 
Law  of  Nations,  it  becomes  evident  that  by  arbitration  they 
mean  a  judicial  process,  while  by  mediation  they  denote  a  diplo- 
matic mode  of  settling  questions  of  dispute  that  arise  between 
nations. 

Vattel  says:  30 

"The  mediator  ought  to  observe  an  exact  impartiality;  he 
should  soften  reproaches,  calm  resentment,  and  draw  minds  toward 
each  other.  His  duty  is  to  favor  what  is  right,  and  to  cause  to  be 
restored  what  belongs  to  each ;  but  he  ought  not  scrupulously  to  in- 
sist on  rigorous  justice.  He  is  a  moderator,  and  not  a  judge;  his 
business  is  to  procure  peace ;  and  to  bring  him  who  has  right  on  his 
side,  if  it  be  necessary,  to  relax  something  with  a  view  to  so  great 
a  blessing.  .  .  .  When  sovereigns  cannot  agree  about  their  pre- 
tensions, and  yet  desire  to  maintain,  or  to  restore  peace,  they  some- 
times trust  the  decision  of  their  disputes  to  arbitrators  chosen  by 
common  agreement.  As  soon  as  the  compromise  (agreement)  is 
concluded,  the  parties  ought  to  submit  to  the  sentence  of  the  arbi- 
trators; they  have  engaged  to  do  this,  and  the  faith  of  treaties 
should  be  regarded." 

Gustave  Rolin-Jaequemyns  says:  31 

"There  is  an  international  law.  This  law  grows  either  from 
conventions,  or  from  general  principles  accepted  by  civilized  na- 
tions. .  .  .  The  states  which  accept  arbitration  recognize  by 
that  very  thing  (and  it  is  that  which  gives  to  that  procedure  so  great 
a  value)  that  their  difference  is  susceptible  of  being  settled  by  the 
rules  of  international  law,  either  general  or  conventional.  It  is  to 
falsify  that  idea  and  to  compromise  its  application,  to  admit  before- 
hand in  the  agreement  (compromis)  itself,  the  eventuality  of  a  so- 
lution dictated,  not  by  the  law,  but  by  an  arbitrary  appreciation  of 
the  convenience  of  each  party." 

Westlake  in  contrasting  arbitration  with  mediation,  says:  82 
"The  essential  point  is  that  the  arbitrators  are  required  to  de- 
cide the  difference — that  is,  to  pronounce  sentence  on  the  question  of 


30  Emer  de  Vattel :  The  Law  of  Nations,  or  Principles  of  the  Law  of 
Nature,  Dublin,  1787,  pp.  415-416. 

n  Revue  de  Droit  International  et  de  Legislation  Comparee,  Brussels, 
1801,  pp.  84-85. 

"John  Westlake:   International  Law,  2nd  ed.,  part  1,  p.  354. 


24         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

right.  To  propose  a  compromise,  or  to  recommend  what  they  think 
best  to  be  done,  in  the  sense  in  which  best  is  distinguished  from 
most  just,  is  not  within  their  province,  but  is  the  province  of  a 
mediator." 

It  has  been  said  by  Mr.  John  Bassett  Moore  a  propos  of 

mediation:  33 

"It  is  important  from  the  practical  as  well  as  from  the  theo- 
retical side  of  the  matter,  to  keep  in  view  the  distinction  between 
arbitration  and  mediation — a  distinction  either  not  understood  or 
else  lost  sight  of  by  many  of  those  who  have  undertaken  to  discuss 
the  one  subject  or  the  other.  Mediation  is  an  advisory,  arbitration 
a  judicial  function.  Mediation  recommends,  arbitration  decides. 
And  while  it  doubtless  may  be  true  that  nations  have,  for  this 
reason,  on  various  occasions  accepted  mediation  when  they  were  un- 
willing or  reluctant  to  arbitrate,  it  is  also  true  that  they  have  settled 
by  arbitration  questions  which  mediation  could  not  have  adjusted. 
It  is,  for  example,  hardly  conceivable  that  the  question  of  the  Ala- 
bama claims  could  have  been  settled  by  mediation.  The  same  thing 
may  be  said  of  many  boundary  disputes.  In  numerous  cases  the  ef- 
forts of  mediators  have  been  directed,  and  successfully  directed,  to 
bring  about  an  arbitration  as  the  only  means  of  putting  an  end  to 
the  controversy." 

He  says  a  propos  of  arbitration :  34 

"Its  object  is  to  displace  war  between  nations  as  a  means  of  ob- 
taining national  redress,  by  the  judgments  of  international  judicial 
tribunals;  just  as  private  war  between  individuals,  as  a  means  of 
obtaining  personal  redress  has,  in  consequence  of  the  development 
of  law  and  order  in  civilized  states,  been  supplanted  by  the 
processes  of  municipal  courts." 

In  this  connection  it  must  not  be  forgotten  that  the 
United  States  of  America  have  materially  aided  the  development 
of  mediation  as  a  mode  of  adjusting  international  disputes. 
Thus  for  example,  the  calling  in  by  President  Wilson  of  the 
A.  B.  C.  Powers  of  South  America  for  the  Niagara  Falls  Medi- 
ation Conference  in  19 14,  to  mediate  between  the  United  States 
and  the  various  factions  of  Mexico,  as  well  as  between  those 
factions  themselves,  was  a  notable  precedent  for  the  use  of  medi- 
ation between  nations.     While  it  is  true  that  the  efforts  of  Ar- 


33  John  Bassett  Moore:  History  and  Digest  of  the  International  Arbitra- 
tions to  Which  the  United  States  Has  Been  a  Party,  Washington,  1898, 
Vol.  V,  p.  5042. 

M  Ibid.,  Vol  VII,  p.  25. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         25 

gentina,  Brazil  and  Chili  acting  at  that  conference  through  their 
ambassadors  accredited  to  Washington  were  only  in  part  suc- 
cessful, nevertheless,  they  did  succeed  in  avoiding  war  between 
the  United  States  and  Mexico.  In  addition,  in  acting  on  that 
occasion  as  compositeurs  amiables  between  the  two  North  Amer- 
ican nations,  the  A.  B.  C.  Powers,  thanks  to  the  initiative  of 
President  Wilson  in  calling  on  them  for  their  good  offices, 
helped  on  the  evolution  of  the  Monroe  Doctrine  into  the  Pan- 
American  Doctrine. 

If  the  United  States  of  America  have  only  aided,  however, 
where  other  nations  had  previously  led  the  way,  in  the  use  of 
mediation,  a  diplomatic  function,  as  a  means  of  avoiding  war, 
the  North  American  republic  has  distinctly  taken  the  leadership 
so  far  among  the  nations  of  the  world  in  developing  the  substi- 
tution of  international  justice  for  international  war  in  settling 
the  disputes  arising  between  nations.  The  Great  War  now 
raging — the  greatest  war  that  has  been  waged  since  human  his- 
tory began,  in  which  most  of  the  powers  of  Europe  are  en- 
gaged busily  in  destroying  millions  of  lives  and  countless 
amounts  of  wealth  saved  and  accumulated  by  past  generations 
through  many  centuries — shows  conclusively  that  there  are  some 
disputes  arising  between  nations  which  cannot  be  settled  be- 
fore an  international  tribunal.35  For  if  the  contestants  had 
really  desired  to  avoid  war  in  the  present  instance  by  an  appeal 
to  judicial  means,  it  was  not  difficult  for  them  to  have  called  into 
being  one  of  The  Hague  International  Courts  created  ad  hoc  for 
which  provision  was  made  at  the  First  Hague  Peace  Conference 
of  1899. 

Serbia  signified  her  willingness  to  appear  with  Austria- 
Hungary  before  such  a  court,36  but  the  fact  that  such  a  tribunal 
was  not  called  into  being  to  pass  judgment  upon  the  original 
difficulty  between  Serbia  and  Austria-Hungary,  thereby  embroil- 


35  Thomas  Balch :  International  Courts  of  Arbitration,  1874,  6th  ed.,  Phil- 
adelphia, 191 5,  passim. 

86  Sa  Vianna:  Qui  a  Provoque  la  Conflagration  Europeenne?  Rio  de 
Janeiro,  1915,  p.  16.  Ellery  C.  Stowell :  The  Diplomacy  of  the  War  of  1914, 
The  Beginnings  of  the  War:    Boston,  1915,  p.  64. 


26         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

ing  almost  all  Europe  in  war,  shows  that  the  cause  of  dispute  in 
this  case  was  of  a  very  different  character  from  the  cause  of 
difference  in  the  Alabama  claims  and  Bering  Sea  fur  seal 
cases.37  In  the  latter  two  cases  which  were  both  submitted  and 
argued  at  the  bar  of  and  decided,  according  to  the  Law  of 
Nations  and  the  evidence  submitted,  by  international  tribunals 
appointed  ad  hoc,  the  political  prestige  and  development  of  the 
litigant  nations  were  not  at  stake.  For,  in  favor  of  whichever 
nation,  in  those  two  cases,  the  court  might  decide,  the  judgment 
would  not  hamper  nor  menace  the  future  political  power  of  the 
loser.  As  a  matter  of  fact  the  United  States  of  America  won 
the  first  case;  Great  Britain  the  second.  And  neither  power  for 
a  day  interrupted,  because  of  either  of  those  decisions,  the  even 
tenor  of  their  political  development. 

But  in  the  intermixed  rivalry  of  the  various  powers  of 
Europe,  which  finally  broke  out  into  war  last  year  between 
Austria-Hungary  and  Serbia  in  the  first  instance,  the  political 
force  and  future  development  of  the  great  powers  were  so  inter- 
woven that  it  was  useless  to  hope  that  such  a  contest  could  be 
permanently  settled  by  an  international  tribunal,  whether  such 
a  court  were  constituted  ad  hoc  according  to  the  provision  made 
by  the  First  and  Second  Hague  Peace  Conferences,  or  whether 
there  had  existed  a  Supreme  Court  of  the  Nations  always  in 
being  and  composed  of  a  small  number  of  judges  appointed  for 
life,  a  dozen  or  fifteen  in  number.  For  no  judicial  tribunal 
could  have  decided  which  group  of  powers  in  Europe  was  the 
stronger  and  entitled  to  the  hegemony  in  the  affairs  of  Europe 
and  the  old  world  generally,  which  meant  the  power  to  control 
a  large  part  of  the  commerce  of  the  world  to  its  own  advantage. 
The  same  thing  was  true  in  1870-71  on  a  smaller  scale  in  the 
contest  between  France  and  Germany,  for  the  Franco-Prussian 
war  likewise  was  a  contest  to  determine  which  was  the  stronger, 
in  shaping  the  policies  of  the  European  powers,  France  or  Ger- 
many.    In  both  the  Alabama  claims  and  the  Bering  Sea  fur 

"  Thomas  Willing  Balch :  Differends  Juridiques  et  Politiques  dans  les 
Rapports  des  Nations,  Revue  Generate  de  Droit  International  Public,  Paris, 
1914,  PP.  137-182. 


U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS         27 

seal  cases,  however,  it  was  not  a  question  of  which  was  the 
stronger,  the  American  Republic  or  the  British  Empire,  but 
which  was  right  according  to  the  Law  of  Nations  in  its  conten- 
tion over  a  question  in  dispute  which  did  not  affect  the  vital 
political  development  of  either  nation  in  the  future. 

The  classes  of  differences  arising  between  nations  which 
seem  to  be  susceptible  of  a  judicial  solution  have  been  termed 
by  the  French  publicists  cas  juridiques,  while  those  that  do  not 
seem  to  fall  within  the  pale  of  international  judicial  procedure 
they  have  called  cas  politiques.  The  notable  British  publicists, 
Westlake  and  Oppenheim,  have  designated  these  two  types  of 
cases  respectively,  legal  and  political  cases.  Of  late  it  has  been 
the  fashion  amon.g  pacifists  to  call  these  two  classes  into  which 
international  cases  seem  naturally  to  divide,  justiciable  and  non- 
justiciable cases.  Certainly  the  term  non- justiciable,  which  is 
a  negative  expression,  is  inferior  to  the  term  political,  which 
is  a  positive  expression,  to  designate  the  cases  that  apparently 
are  not  susceptible  of  being  settled  by  reference  to  an  interna- 
tional tribunal. 

The  past  development  and  actual  use  of  resorting  to  inter- 
national justice  to  settle  many  difficulties  that  have  threatened 
the  amicable  relations  and  peace  of  nations,  prove  beyond  the 
shadow  of  a  doubt  that  recourse  by  nations  to  international 
tribunals  such  as  the  courts  that  sat  at  Geneva  on  the  Alabama 
claims  and  at  Paris  on  the  Bering  Sea  fur  seal  fisheries  cases, 
has  been  a  most  precious  mode  of  avoiding  war.  But  in  view  of 
the  Franco-Prussian  war  of  1870-71,  the  South  African  war 
of  1899-1902,  the  Russo-Japanese  war  of  1903-1905,  and  the 
Great  War  now  raging,  it  is  evident  that  in  the  present  social 
and  political  development  of  the  world,  it  is  absurd  to  think  that 
all  causes  of  rivalry  developing  between  nations  can  finally  be 
decided  by  a  reference  to  an  international  court  instead  of  by 
war.  And  it  will  be  a  long  time,  if  ever,  before  war  is  elimi- 
nated from  human  affairs. 

Nevertheless,  the  United  States  of  America  may  justly 
glory  in  the  part  they  have  taken  in  developing  the  recourse 
among  nations  of  referring  their  differences  often  to  interna- 


28         U.  S.  AND  EXPANSION  OF  LAW  BETWEEN  NATIONS 

tional  judicial  tribunals,  and  in  the  great  suffering  and  loss  that 
has  thereby  on  several  occasions  been  spared  to  humanity. 

From  this  hasty  look  at  the  part  this  country  has  taken  in 
shaping  the  Law  between  Nations,  it  becomes  clear  that  the 
United  States  of  America  have  played  a  notable  role.  Through 
their  foreign  policy  from  President  Washington  and  Secretary 
Jefferson  to  President  Wilson  and  Secretary  Lansing,  and  by 
the  writings  of  the  American  international  publicists — Noah 
Webster,  Peter  Stephen  Du  Ponceau,  James  Kent,  Henry 
Wheaton,  Francis  Lieber,  William  Beach  Lawrence,  Richard 
Henry  Dana,  Jr.,  Theodore  D wight  Woolsey,  Thomas  Balch, 
Francis  Wharton,  Freeman  Snow,  to  mention  only  some — they 
have  done  much  to  orientate  the  Law  between  Nations  to  the 
advantage  of  humanity  and  the  advancement  of  the  civilization 
of  the  world. 

Thomas  Willing  Balch. 

Philadelphia. 


/ 


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